Coming to Terms

EEOC Issues Enforcement Guidance on Pregnancy Discrimination Act

By SUSAN G. FENTIN, Esq.

Employers’ obligations under the Pregnancy Discrimination Act made news in July when the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the Pregnancy Discrimination Act (PDA). This announcement from the EEOC follows the U.S. Supreme Court’s July 1 decision agreeing to hear Young v. UPS, a case that arises out of an employer’s decisions regarding a pregnant employee who was unable to perform the essential functions of her position.

Susan G. Fentin

The PDA was enacted to extend the protections of Title VII to encompass pregnancy, childbirth, or related medical conditions, considering discrimination based on those circumstances to be a form of sex discrimination in violation of Title VII. The issue in the Young case involves a UPS policy that limits light-duty assignments to individuals with work-related injuries or those who are considered disabled under the ADA. UPS denied a light-duty assignment to Ms. Young because her lifting restrictions were not work-related and she was not considered disabled under the ADA, with the result that she was forced to take unpaid leave from her job.

Her suit against UPS was dismissed on the grounds that a pregnant worker with a temporary lifting restriction isn’t “similar in her ability or inability to work” to the other types of employees for whom UPS willingly provided light duty. UPS successfully argued that its policy is “pregnancy blind” and therefore not discriminatory. The Appeals Court decision dismissing the case was appealed to the Supreme Court, which has accepted the case for its 2014-15 term.

Significantly, the new enforcement guidance specifically covers the issue pending before the court: whether a pregnant employee is entitled to light duty if her employer would grant a light-duty assignment to other workers who are subject to the same work restrictions.

The EEOC Guidance

Although the EEOC’s PDA enforcement guidance does not have the force of law, it’s generally considered persuasive by the federal courts. So the provisions of this new guidance are significant for employers who are considering their obligations to their pregnant workers. Much of the guidance restates an employer’s existing obligations to its pregnant employees:

• The PDA and Title VII protect women who are currently or have been pregnant, could potentially or are trying to become pregnant, and medical conditions that result from pregnancy;

• Employers may not make decisions about pregnant employees based on stereotypes, assumptions, or fears that a pregnant worker could harm herself or her baby by continuing to work;

• Employees who are breastfeeding are also considered protected under Title VII;

• Employers may not discriminate against employees who have had or are contemplating an abortion; and

• Employers are cautioned against making employment decisions based on a woman’s potential caregiving responsibilities.

Potentially Problematic Provisions

However, some of the provisions of the new guidance could be potentially problematic for employers. The guidance states that even a seemingly neutral policy, such as a weight-lifting requirement, could have a disproportionate impact on pregnant women.

Although such cases generally require statistically significant data, the guidance suggests that such evidence might not be required if all or substantially all pregnant women would be negatively affected by the policy. To defend such a claim, an employer must be able to show that the requirement is “necessary to safe and efficient job performance,” and even then, an employer can still be held liable if there is a less discriminatory alternative, but the employer refuses to implement it.

Similarly, a company policy, such as the UPS policy in Young, can be considered a violation of the PDA if it denies light duty or other accommodations to pregnant women while granting those benefits to other employees with similar restrictions. The guidance specifically states that that a pregnant worker with a work restriction who is denied light duty can establish a case of discrimination by identifying any other employee, including employees injured on the job and/or covered by the ADA, who is similar in his or her ability or inability to work and who was accommodated or granted light-duty work. In this section of the guidance, the EEOC specifically rejected the idea that an employer does not have to provide light duty for a pregnant worker if it has a policy that limits light duty to workers injured on the job and/or to employees with disabilities under the ADA.

In addition, the new guidance states that a policy that restricts sick leave might also have a disparate impact on pregnant women, citing examples where a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women. The guidance also underscores the impact of the 2008 amendments to the ADA, noting that, while pregnancy itself is not a disability, pregnancy-related impairments may be disabilities under the new version of that statute.

Of course, this is not news to Massachusetts employers, who have long been required to consider pregnancy-related conditions as disabilities under state law. And the guidance specifically states that an employer’s health-insurance plan must cover “prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy,” although the EEOC concedes that it does not address whether an employer may maintain a religious exemption from this requirement, as dictated in the Supreme Court’s recent Hobby Lobby decision.

The new enforcement guidance is available at www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. The EEOC has also published a fact sheet for small employers at www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm.

Bottom Line

Employers should exercise caution when making decisions about the ability of pregnant employees to perform the essential functions of their positions. If an employer cannot accommodate any worker with a lifting restriction, regardless of whether or not that employee is female and pregnant, then a claim for failure to accommodate or pregnancy discrimination will not likely be successful.

But employers who limit their light-duty policies to those with work-related injuries should be careful about denying a light-duty position to a pregnant worker with work restrictions. And Massachusetts employers should continue to engage in the interactive process with their pregnant workers to determine whether there are any accommodations that would allow a pregnant worker with a restriction to perform the essential functions of her job.

Attorney Susan G. Fentin is a partner at Springfield-based Skoler, Abbott & Presser. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court. She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; (413) 737-4753; sfentin@skoler-abbott.com

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